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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coope & Ors v Ward & Anor [2015] EWCA Civ 30 (28 January 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/30.html Cite as: [2015] WLR(D) 34, [2015] EWCA Civ 30, [2015] WLR 4081, [2015] 1 WLR 4081 |
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ON APPEAL FROM SHEFFIELD COUNTY COURT
HHJ Robinson
1SE00423
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CHRISTOPHER CLARKE
and
LORD JUSTICE BEAN
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Coope and Others |
Appellants |
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- and - |
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Ward and Another |
Respondents |
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Ms Brie Stevens-Hoare QC and Ms Morayo Fagborun Bennett (instructed by Bar Pro Bono Unit) for the Respondent
Hearing dates: 28th October 2014; additional material supplied 11th – 14th November 2014
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Crown Copyright ©
Lord Justice Christopher Clarke:
The properties and their owners
The judge's findings
Responsibility
The measured duty of care
The authorities
i) to pay his contribution in which case the defendant was in principle either under a duty to carry out the works or to contribute her proportion of the cost of having the works carried out; or
ii) to carry out the works in which case the defendant would in principle be under an obligation to pay the claimant the proportion of the cost appropriately to be borne by her.
I do not regard Munby J as having held that Abbahall were under any free standing duty to the defendant; rather, if they sought to enforce her duty to them they would have to carry out the works or pay their share. If, therefore, the Coopes are to be regarded as in the same position as Abbahall, i.e. not themselves under any duty, they would be able to recover contribution from the Wards if they (the Coopes) were prepared to carry out the work or contribute to its costs, but would not themselves be under an obligation to do either of these things.
The Coopes' submissions
Subsidiary arguments
Apportionment
i) propping of the Orchard Wall off land belonging to numbers 60 and 62, which would involve vertical timber bearers to be taken down to the ground of the gardens;
ii) demolition of the Orchard Wall and fence, and of the land behind it and, once the wall had been removed down to its foundation the battering back of the ground at an angle of approximately 30° back to the garden;
iii) allowing the Orchard wall to collapse into the rear of numbers 60 and 62.
He did not recommend (i) without more thought because propping could itself generate collapse. Nor did he recommend (iii).
a) building a new wall along the line of the original wall of reinforced concrete or reinforced masonry;
b) the provision of a proprietary retaining wall system making use of interlocking concrete or timber elements which contained loose stone fillings;
c) adjusting the levels of the grounds on the two sides of the wall to create a stepped terrace between the properties.
"3….in respect of any engineering or other solution which may be devised to deal with the consequences attendant upon the collapse of the Boundary wall, the contribution of the Coopes shall be a rateable proportion of the cost of such solution by reference to the length of that part of the collapsed Boundary Wall which is contiguous with the properties at 41 Orchard Lane and 62 Armstead Road and in any event such contribution shall not exceed the cost of providing a wall capable of retaining land to a depth of four feet along the length of that part of the collapsed wall which is contiguous with the properties at 41 Orchard Lane and 62 Armstead Road."
The order gave liberty to apply for further or other relief arising out of the judgment, in particular the method of calculating the rateable proportion referred to in paragraph 3 of the order.
Conclusion
Costs
Lord Justice Bean
Lady Justice Arden
Note 1 The judge was mistaken in thinking that the phrase was coined by Stuart Smith LJ inHolbeck Hall Hotel v Scarborough Borough Council, although Stuart-Smith LJ did observe in that case that “in considering the scope of the measured duty of care, the courts are still in relatively uncharted waters”. [Back]